Rhodes v. California Department of Corrections

Filing 10

ORDER signed by Magistrate Judge Allison Claire on 2/6/14 DISMISSING 4 First Amended Complaint; DENYING 6 Motion for Default Judgment. Plaintiff is GRANTED 30 days from the date of service of this order to file a second amended complaint that c omplies with the requirements of the Federal Rules of Civil Procedure, and the Local Rules of Practice; the amended complaint must bear the docket number assigned this case and must be labeled "Second Amended Complaint;" plaintiff must file an original and two copies of the second amended complaint; failure to file a second amended complaint in accordance with this order will result in a recommendation that this action be dismissed. (Meuleman, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANDRE RHODES,

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No. 2:13-cv-1240 JAM AC PS

Plaintiff,
v.

ORDER

THE CALIFORNIA DEP’T OF
CORRECTIONS, ET AL.,
Defendants.

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Plaintiff is proceeding in this action pro se. Plaintiff’s original complaint was previously

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dismissed and leave to amend was granted. Plaintiff has now filed a first amended complaint,

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which the court now reviews.

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The federal in forma pauperis statute authorizes federal courts to dismiss a case if the

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action is legally “frivolous or malicious,” fails to state a claim upon which relief may be granted,

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or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.

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§ 1915(e)(2).

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

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Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,
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490 U.S. at 327.
A complaint, or portion thereof, should only be dismissed for failure to state a claim upon

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which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in

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support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467

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U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt

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Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under

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this standard, the court must accept as true the allegations of the complaint in question, Hospital

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Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light

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most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, Jenkins v.

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McKeithen, 395 U.S. 411, 421 (1969).
In the first amended complaint, plaintiff brings suit against the Sacramento County Police

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Department, the City of Sacramento, and the Sacramento County Public Law Library for

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violations of his constitutional rights stemming from the May 23, 2013 “Notice of Trespass” he

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received. Unfortunately, the amended pleading lacks essential details, rendering it difficult for

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the court to analyze plaintiff’s claims. For example, though plaintiff states that he received a

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Notice of Trespass “due to his utilizing the Sacramento County Public Law Library for legal

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research,” the issuance of such a notice, without more, does not constitute a violation of

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plaintiff’s constitutional rights.

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The court has therefore determined that the amended complaint, like the original pleading,

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does not contain a short and plain statement as required by Federal Rule of Civil Procedure

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8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair

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notice and state the elements of the claim plainly and succinctly. Jones v. Community Redev.

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Agency, 733 F.2d 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of

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particularity overt acts which defendants engaged in that support plaintiff's claim. Id. Because

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plaintiff has failed to comply with the requirements of Federal Rule of Civil Procedure 8(a)(2),

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the first amended complaint must be dismissed. The court will, however, grant leave to file a

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second amended complaint.

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If plaintiff chooses to amend the first amended complaint, plaintiff must set forth the
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jurisdictional grounds upon which the court’s jurisdiction depends. Fed. R. Civ. P. 8(a). Further,

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plaintiff must demonstrate how the conduct complained of has resulted in a deprivation of

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plaintiff's federal rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The complaint must

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allege in specific terms how each named defendant is involved. There can be no liability under §

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1983 unless there is some affirmative link between a defendant’s actions and the claimed

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deprivation. Rizzo v. Goode, 423 U.S. 362 (9176); May v. Enomoto, 633 F.2d 164, 167 (9th Cir.

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1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to

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make plaintiff's amended complaint complete. Local Rule 15-220 requires that an amended

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complaint be complete in itself without reference to any prior pleading. This is because, as a

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general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375

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F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no

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longer serves any function in the case. Therefore, in an amended complaint, as in an original

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complaint, each claim and the involvement of each defendant must be sufficiently alleged.

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Also pending is plaintiff’s motion for default judgment. The Ninth Circuit Court of

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Appeals has stated that Federal Rule of Civil Procedure 55 requires a “two-step process” to obtain

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default judgment, consisting of: (1) seeking the clerk’s entry of default, and (2) filing a motion for

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entry of default judgment. Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986) (“Eitel

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apparently fails to understand the two-step process required by Rule 55.”); Symantec Corp. v.

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Global Impact, Inc., 559 F.3d 922, 923 (9th Cir. 2009) (noting “the two-step process of ‘Entering

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a Default’ and ‘Entering a Default Judgment’ ”).

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In light of the requirement to obtain entry of default before seeking default judgment,

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courts deny motions for default judgment where default has not been previously entered. See,

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e.g., Marty v. Green, 2011 WL 320303, at *3 (E.D. Cal. Jan. 28, 2011) (“Plaintiff’s motion for

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default judgment is denied because plaintiff did not follow the procedural steps required to

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properly file a motion for default judgment. Specifically, plaintiff failed to seek a clerk’s entry of

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default from the Clerk of Court prior to filing his motion for default judgment.”); Norman v.

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Small, 2010 WL 5173683, at *2 (S.D. Cal. Dec. 14, 2010) (denying plaintiff’s motion for default
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judgment because “the clerk has not entered default”); Bach v. Mason, 1901 F.R.D. 567, 574 (D.

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Idaho 1999) (“Plaintiffs have improperly asked this court to enter a default judgment without first

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obtaining an entry of default by the clerk. Since plaintiffs’ motion for entry of default judgment

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is improper, it is denied.”).

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In this case, default has not been entered against any of the defendants. Without first

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obtaining an entry of default against the defendants, plaintiff’s motion for default judgment is

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improperly before this court. See Bach, 190 F.R.D. at 574. Furthermore, entry of default may

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not be obtained unless and until defendants have been served and have failed to plead or

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otherwise defend as required by the Federal Rules of Civil Procedure. Fed. R. Civ. P. 55(a). This

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case is not yet in that posture. Accordingly, this request will be denied.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s first amended complaint is dismissed;

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2. Plaintiff’s motion for default judgment (ECF No. 6) is denied; and

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3. Plaintiff is granted thirty days from the date of service of this order to file a second

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amended complaint that complies with the requirements of the Federal Rules of Civil

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Procedure, and the Local Rules of Practice; the amended complaint must bear the

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docket number assigned this case and must be labeled “Second Amended Complaint”;

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plaintiff must file an original and two copies of the second amended complaint; failure

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to file a second amended complaint in accordance with this order will result in a

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recommendation that this action be dismissed.

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DATED: February 6, 2014

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